Common use of Shareholder Representatives Clause in Contracts

Shareholder Representatives. (a) By approving the Merger at the Shareholders’ Meeting or by written consent of the Company’s shareholders or, in the case of the Signing Shareholders, by execution of this Agreement, each Company Shareholder hereby appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Shareholder Representatives. The Shareholder Representatives shall have sole and exclusive authority to act for and on behalf of all Company Shareholders with respect to all matters arising in connection with this Agreement, including, without limitation, the power and authority, in his sole discretion, to (i) take any action contemplated to be taken by the Company Shareholders under this Agreement and the Escrow Agreement; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement; and (iii) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement; provided, however, that the Shareholder Representatives shall not have the power and authority, for and on behalf of the Company Shareholders, to amend the terms of this Agreement. Notwithstanding anything else contained herein, prior to taking any material action, including without limitation, any action that requires any Shareholder Representative to execute any document, the settlement of any Claims or the distribution of any Escrow Amount, the Shareholder Representatives are required to receive the written consent of the Company Shareholders holding at least 50.01% of the Shares of the Company as of the date of this Agreement, on an as-converted to Common Stock basis (the “Requisite Holders”) (b) The appointment of the Shareholder Representatives may not be revoked except in accordance with this Section 9.7(b). The Shareholders Representatives, or either of the them, may be replaced by the Company Shareholders from time to time upon notice given to Parent, which replacement shall be effective one business day after receipt of such notice by Parent; provided that no Shareholder Representative may be replaced unless the Requisite Holders agree in writing to such removal and to the identity of the substituted Shareholder Representative. If at the time of any such replacement of any Shareholder Representative, the deadline hereunder for Parent to provide notice to the Shareholder Representatives with respect to any Claim or action to be taken in connection with this Agreement is within fifteen (15) days, then such deadline shall be extended such number of days that is fifteen (15) days after Parent’s receipt of such notice of replacement. Until replaced pursuant to this Section 9.7(b), the Parent Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Shareholder Representatives. (c) In performing the functions specified in this Agreement, the Shareholder Representatives will not be liable to any Company Shareholder in the absence of fraud, willful misconduct or gross negligence on the part of the Shareholder Representatives. Each of the Company Shareholders (including the Signing Shareholders) shall severally and not jointly, indemnify each of the Shareholder Representatives and hold him harmless against any liability, cost or expense incurred by him in the absence of fraud or willful misconduct on the part of the Shareholder Representatives and arising out of or in connection with the acceptance or administration of his duties hereunder, provided that no Company Shareholder shall be required to pay any indemnification hereunder in excess of the Merger Consideration actually received by such Company Shareholder after all adjustments. The Shareholder Representatives shall not be entitled to any fee, commission or other compensation for the performance of their services as Shareholder Representatives, but any out-of-pocket costs and expenses incurred by the Shareholder Representatives in connection with actions taken by the Shareholder Representatives pursuant to the terms of this Agreement and the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) shall be paid by the Company Shareholders to the Shareholder Representatives based on each Company Shareholder’s share of the Escrow Amount, prior to any disbursement of such amount to any Company Shareholder; provided, however, that the Shareholder Representatives shall obtain the prior written consent of the Requisite Holders prior to incurring any fees or expenses in excess of $1,000 individually or $5,000 in the aggregate.

Shareholder Representatives. (a) By approving the Merger at the Shareholders’ Meeting or by written consent of the Company’s shareholders or, in the case of the Signing Shareholders, by execution of this Agreement, each Company Each Shareholder hereby constitutes and appoints Joseph P. Delaney and Robert C. Jazwinski as their shareholder represe▇▇▇▇▇▇▇▇ (▇▇▇ "▇▇areho▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as s") and their true and lawful attorneys in fact, with full power and authority in their names and on their behalf: (a) to act on behalf such Shareholder in the absolute discretion of the Shareholder Representatives. The Shareholder Representatives shall have sole and exclusive authority to act for and on behalf of all Company Shareholders , but only with respect to all matters arising the following provisions of this Agreement, with the power to: (i) designate the accounts for payment of the Cash Consideration pursuant to Section 3.3(a); (ii) act pursuant to Article II with respect to any adjustment to the Base Merger Consideration; (iii) act under Section 9.6 and under the Escrow Agreement; (iv) give and receive notices pursuant to Section 10.3; (v) terminate this Agreement pursuant to Article XIII or waive any provision of this Agreement pursuant to Sections 7.1, 7.3, 8.1 and 10.12; (vi) act in connection with this Agreementany matter as to which the Shareholders, includingjointly and severally, without limitationhave obligations, the power or are Indemnified Parties, under Article 9; and authority, in his sole discretion, to (ivii) take any action contemplated to be taken by the Company Shareholders under this Agreement and the Escrow Agreement; (ii) negotiate, determine, defend and settle any disputes that may arise under or act in connection with this Agreementany matter under Section 6.3; and (iiib) makein general, executeto do all things and to perform all acts, acknowledge including executing and deliver any releasesdelivering all agreements, assurancescertificates, receipts, requestsinstructions and other instruments contemplated by or deemed advisable to effectuate the provisions of this Section 10.15. This appointment and grant of power and authority is coupled with an interest and is in consideration of the mutual covenants made herein and is irrevocable and shall not be terminated by any of the Shareholders or the Company or by operation of law, instructions, notices, agreements, certificates and whether by the death or incapacity of any Shareholder or by the occurrence of any other instruments, and generally do any and all things and take event. Each Shareholder hereby consents to the taking of any and all actions that may be requisite, proper or advisable in connection with this Agreement; provided, however, that and the Shareholder Representatives shall not have the power and authority, for and on behalf of the Company Shareholders, to amend the terms of this Agreement. Notwithstanding anything else contained herein, prior to taking any material action, including without limitation, any action that requires any Shareholder Representative to execute any document, the settlement making of any Claims decisions required or the distribution of any Escrow Amount, the Shareholder Representatives are required to receive the written consent of the Company Shareholders holding at least 50.01% of the Shares of the Company as of the date of this Agreement, on an as-converted to Common Stock basis (the “Requisite Holders”) (b) The appointment of the Shareholder Representatives may not be revoked except in accordance with this Section 9.7(b). The Shareholders Representatives, or either of the them, may be replaced by the Company Shareholders from time to time upon notice given to Parent, which replacement shall be effective one business day after receipt of such notice by Parent; provided that no Shareholder Representative may be replaced unless the Requisite Holders agree in writing to such removal and to the identity of the substituted Shareholder Representative. If at the time of any such replacement of any Shareholder Representative, the deadline hereunder for Parent to provide notice to the Shareholder Representatives with respect to any Claim or action permitted to be taken in connection with this Agreement is within fifteen (15) days, then such deadline shall be extended such number of days that is fifteen (15) days after Parent’s receipt of such notice of replacement. Until replaced pursuant to this Section 9.7(b), the Parent Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Shareholder Representatives. (c) In performing the functions specified in this Agreement, the Shareholder Representatives will not be liable to any Company Shareholder in the absence of fraud, willful misconduct or gross negligence on the part of the Shareholder Representatives. Each of the Company Shareholders (including the Signing Shareholders) shall severally and not jointly, indemnify each of the Shareholder Representatives and hold him harmless against any liability, cost or expense incurred by him in the absence of fraud or willful misconduct on the part of the Shareholder Representatives and arising out of or in connection with the acceptance or administration of his duties hereunder, provided that no Company Shareholder shall be required to pay any indemnification hereunder in excess of the Merger Consideration actually received by such Company Shareholder after all adjustments. The Shareholder Representatives shall not be entitled to any fee, commission or other compensation for the performance of their services as Shareholder Representatives, but any out-of-pocket costs and expenses incurred by the Shareholder Representatives in connection with actions taken made by the Shareholder Representatives pursuant to the terms of this Agreement and the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) shall be paid by the Company Shareholders to the Shareholder Representatives based on each Company Shareholder’s share Section 10.15. Each of the Escrow Amount, prior to any disbursement of such amount to any Company Shareholder; provided, however, Shareholders agrees that the Shareholder Representatives shall obtain have no obligation or liability to any Person for any action or omission taken or omitted by the prior written consent Shareholder Representatives in good faith hereunder, and each of the Requisite Holders prior to incurring any fees Shareholders shall, on a proportionate basis in accordance with his or expenses in excess of $1,000 individually or $5,000 her ownership interest in the aggregateCompany, indemnify and hold the Shareholder Representatives harmless from and against any and all loss, damage, expense or liability (including reasonable counsel fees and expenses) which the Shareholder Representatives may sustain as a result of any such action or omission by the Shareholder Representatives hereunder.

Shareholder Representatives. (a) By approving 2.11.1 Each Shareholder, by entering into this Agreement and/or surrendering one or more Certificates and a Letter of Transmittal and accepting a portion of the Merger at the Shareholders’ Meeting Consideration, and each Optionholder, by accepting his or by written consent her Option Merger Consideration, shall be deemed to have irrevocably authorized and appointed each of the Company’s shareholders or, in the case of the Signing Shareholders, by execution of this Agreement, each Company Shareholder hereby appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as the Shareholder Representatives. The Shareholder Representatives shall have sole and exclusive authority any replacement representative appointed pursuant to Section 2.11.2, with full power of substitution and resubstitution, as his, her or its representative and true and lawful attorney-in-fact and agent to act for in his, her or its name, place and on behalf of all Company Shareholders stead with respect to all matters arising in connection with this Agreement, including, without limitation, the power and authority, in his sole discretion, to: (ia) take any action contemplated to be taken by the Company Shareholders or Optionholders and/or the Shareholder Representatives under this Agreement and or the Indemnity Escrow Agreement; (iib) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement or the Indemnity Escrow Agreement, including, without limitation, with respect to any indemnification claim pursuant to Article 9; and (iiic) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement; provided, howeverincluding, that without limitation, pursuant to Article 9. Parent and the Surviving Corporation shall be entitled to rely upon, without independent investigation, any act, notice, instruction or communication signed by both of the Shareholder Representatives shall not have the power and authorityor, for and on behalf if one of the Company Shareholders, to amend the terms of this Agreement. Notwithstanding anything else contained herein, prior to taking any material action, including without limitation, any action that requires any Shareholder Representative to execute any document, the settlement of any Claims or the distribution of any Escrow Amount, the Shareholder Representatives are required to receive the written consent has resigned and has not been replaced, any of the Company Shareholders holding at least 50.01% of foregoing signed by the Shares of the Company as of the date of this Agreement, on an as-converted to Common Stock basis remaining Shareholder Representative (the “Requisite HoldersRemaining Representative”)) and any document executed by both of the Shareholder Representatives or the Remaining Representative (as applicable) shall be an action of the Shareholder Representatives for purposes of this Agreement and Parent shall be fully protected in connection with any action or inaction taken or omitted to be taken in reliance thereon absent willful misconduct. Each of the Shareholder Representatives will execute and deliver to Parent the Indemnity Escrow Agreement at the time of Closing. (b) 2.11.2 The appointment of the Shareholder Representatives may not be revoked except in accordance with this Section 9.7(b). The Shareholders Representatives, or either 2.11.2. (a) Either of the them, Shareholder Representatives may resign at any time on five (5) Business Days’ written notice to Parent and the Shareholders. Either of the Shareholder Representatives may be replaced by the Company Shareholders from time to time (including following resignation of either of the Shareholder Representatives) by majority vote of those Shareholders entitled to receive any portion of the Merger Consideration based upon their relative interests in the Merger Consideration, upon notice given to Parent, which replacement shall be effective one business day (1) Business Day after receipt of such notice by Parent; provided that no Shareholder Representative may be replaced unless the Requisite Holders agree in writing to such removal and to the identity of the substituted Shareholder Representative. If at the time of any such replacement of any Shareholder Representative, the deadline hereunder for Parent to provide notice to the Shareholder Representatives with respect to any Claim indemnification claim or action to be taken in connection with this Agreement is within fifteen (15) days, then such deadline shall be extended such number of days that is fifteen (15) days after Parent’s receipt of such notice of replacement. Until replaced pursuant to this Section 9.7(b), the Parent Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Shareholder Representatives. (cb) In performing the functions specified in this Agreement, the Shareholder Representatives will not be liable to any Company Shareholder in the absence of fraudPerson including, willful misconduct without limitation, for any actions or gross negligence on the part of omissions taken by the Shareholder Representatives. Each of the Company Shareholders (including the Signing Shareholders) shall severally and not jointly, indemnify each of the Shareholder Representatives and hold him harmless against any liability, cost or expense incurred by him in the absence of fraud or willful misconduct on the part of the Shareholder Representatives Representatives. Each Shareholder, by entering into this Agreement and/or surrendering one or more Certificates and arising out a Letter of or in connection with the acceptance or administration of his duties hereunder, provided that no Company Shareholder shall be required to pay any indemnification hereunder in excess Transmittal and accepting a portion of the Merger Consideration actually received Consideration, and each Optionholder, by such Company accepting his or her Option Merger Consideration, has accepted the limitations on the Shareholder after all adjustmentsRepresentatives’ liability set forth in this Section 2.11.2(b). The Shareholder Representatives shall not be entitled to any fee, commission or other compensation for the performance of their services as Shareholder Representatives, but any out-of-out of pocket costs and expenses incurred by the Shareholder Representatives in connection with actions taken by the Shareholder Representatives pursuant to the terms of this Agreement and the Escrow Agreement (including the hiring of legal counsel and the incurring of legal fees and costs) shall be deducted from the amount of the Indemnification Escrow Amount otherwise payable to the Shareholders pursuant to this Agreement and the Indemnity Escrow Agreement and paid to the Shareholder Representatives, or shall be paid by the Company Shareholders pursuant to the Shareholder Representatives based on each Company Shareholder’s share of the Escrow Amount, prior to any disbursement of such amount to any Company Shareholder; provided, however, that the Shareholder Representatives shall obtain the prior written consent of the Requisite Holders prior to incurring any fees or expenses in excess of $1,000 individually or $5,000 in the aggregatearrangement as they may make.

Shareholder Representatives. (a) By approving the Merger at the Shareholders’ Meeting or by written consent of the Company’s shareholders or, in the case of the Signing Shareholders, by execution of this Agreement, each Company Shareholder hereby appoints ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ are hereby appointed by the Shareholders to act as representatives and agents for the Shareholders (each a “Shareholder Representative”). All actions to be taken by the Shareholder Representatives under this Agreement shall be evidenced by, and may only be taken upon, the written direction of both of the Shareholder Representatives. The Any notices sent to the Shareholder Representatives shall have sole and exclusive authority be sent to act for and on behalf both of all Company them. (b) The Shareholders with respect to all matters arising in connection with this Agreement, including, without limitation, hereby authorize the power and authority, in his sole discretion, Shareholder Representatives to: (i) make all decisions relating to the determination of the Closing Net Working Capital and any resulting adjustment to the Cash Consideration portion of the Purchase Price pursuant to Section 2.3(c); (ii) take all action, including making payments from the Houston Holdback Amount to obtain a certificate of occupancy for the Houston Warehouse and releases of all Houston Warehouse Construction Liens; (iii) take all action necessary in connection with the defense and/or settlement of any claims for which the Shareholders may be required to indemnify the Buyer pursuant to Section 6.2; (iv) give and receive all notices required to be given by or to the Shareholders under this Agreement (other than the notices required to be given to all Shareholders pursuant to Section 2.3(g)); and (v) take any and all additional action as is contemplated to be taken by the Company Shareholders under this Agreement and the Escrow Agreement; (ii) negotiate, determine, defend and settle any disputes that may arise under or in connection with this Agreement; and (iii) make, execute, acknowledge and deliver any releases, assurances, receipts, requests, instructions, notices, agreements, certificates and any other instruments, and generally do any and all things and take any and all actions that may be requisite, proper or advisable in connection with this Agreement; provided, however, that the Shareholder Representatives shall not have the power and authority, for and on behalf of the Company Shareholders, to amend Shareholders by the terms of this Agreement. Notwithstanding anything else contained herein, prior to taking any material action, including without limitation, any action that requires any Shareholder Representative to execute any document, the settlement of any Claims or the distribution of any Escrow Amount, the Shareholder Representatives are required to receive the written consent of the Company Shareholders holding at least 50.01% of the Shares of the Company as of the date of this Agreement, on an as-converted to Common Stock basis (the “Requisite Holders”) (b) The appointment of the Shareholder Representatives may not be revoked except in accordance with this Section 9.7(b). The Shareholders Representatives, or either of the them, may be replaced by the Company Shareholders from time to time upon notice given to Parent, which replacement shall be effective one business day after receipt of such notice by Parent; provided that no Shareholder Representative may be replaced unless the Requisite Holders agree in writing to such removal and to the identity of the substituted Shareholder Representative. If at the time of any such replacement of any Shareholder Representative, the deadline hereunder for Parent to provide notice to the Shareholder Representatives with respect to any Claim or action to be taken in connection with this Agreement is within fifteen (15) days, then such deadline shall be extended such number of days that is fifteen (15) days after Parent’s receipt of such notice of replacement. Until replaced pursuant to this Section 9.7(b), the Parent Indemnified Parties shall be entitled to rely on all statements, representations and decisions of the Shareholder Representatives. (c) In performing the functions specified in this Agreement, the Shareholder Representatives will not be liable to any Company Shareholder in the absence of Except for fraud, bad faith, or willful misconduct or gross negligence on the part breach of this Agreement by the Shareholder Representatives. Each of the Company Shareholders (including the Signing Shareholders) shall severally , all decisions and not jointly, indemnify each of the Shareholder Representatives and hold him harmless against any liability, cost or expense incurred by him in the absence of fraud or willful misconduct on the part of the Shareholder Representatives and arising out of or in connection with the acceptance or administration of his duties hereunder, provided that no Company Shareholder shall be required to pay any indemnification hereunder in excess of the Merger Consideration actually received by such Company Shareholder after all adjustments. The Shareholder Representatives shall not be entitled to any fee, commission or other compensation for the performance of their services as Shareholder Representatives, but any out-of-pocket costs and expenses incurred by the Shareholder Representatives in connection with actions taken by the Shareholder Representatives pursuant to the terms authority granted to them by this Section 2.4 shall be binding upon all of this Agreement the Shareholders, no Shareholder shall have the right to object, dissent, protest, or otherwise contest the same, and the Escrow Agreement (including the hiring of legal counsel Buyer and the incurring of legal fees Company may rely upon such authority and costs) shall be paid the decisions and actions so taken by the Company Shareholders Shareholder Representatives. In the event that either Shareholder Representative dies, becomes unable to the Shareholder Representatives based on each Company Shareholder’s share perform his responsibilities hereunder, is removed (by a majority vote of the Escrow AmountShareholders according to their respective Proportionate Shares), prior or resigns from such position, then the Shareholders shall select a successor Shareholder Representative (by majority vote of the Shareholders according to any disbursement of such amount to any their respective Proportionate Shares) and shall notify the Buyer and Company Shareholderthereof in writing; provided, however, that the Shareholders hereby agree that the first such successor Shareholder Representatives Representative shall obtain the prior written consent of the Requisite Holders prior to incurring any fees or expenses in excess of $1,000 individually or $5,000 in the aggregatebe ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.